Now, generally, I love the "make them prove it" clients. I wish I had more of them. A lot of clients give up on good cases and take a plea just to get it over with. But this is not one of those situations.

"Well, if we were to go to trial, I don't think it'd go that well..."

"I've got rights. I'm going to trial. Make them prove it."

"Ok, ok, but you made a full confession to the police, right?"

"Yeah, but make them prove it. None of the police saw it." (As if every case, even paper cases, require an eyewitness.)

"And you gave them evidence. And you told them where to find other witnesses against you."

"But the D.A. didn't see me do anything. Make him prove it." (Oh, ok, now someone from the D.A.'s office has to witness every crime. I like that. Write that down.)

I try to talk my clients into what I think is the right thing to do. I explain the pros and cons, I talk them through what could happen if we go to trial, I explain what the plea would entail. All I can do is give information and guidance, right?

But, the thing is, I feel like I'm working against a negative perception of public defenders. I wish I could twist this client's arm into taking a plea - to the extent that I can twist a client's arm, but at the same time I feel like I'm walking some imaginary boundary that keeps me from being that public defender who just wants to "cop everyone out."

"You get paid whether I go to trial or not. So what do you care? I'm not copping out." This client told me today.

"I care because I don't like to see my clients go to jail. And that's what would happen after trial."

"Oh, now you're threatening me with jail if I don't cop out." As if the threat is coming from me. Yup, I just came up with that to force you take a plea.

I try to analogize my position to that of a doctor - you don't like the advice that I'm giving, but it's my advice of what is going to be best for you. But, the truth is, the doctor has the advantage of science and things that are a lot more predictable than D.A.'s offers and jury verdicts and sentencing decisions. A doctor can say "I know you don't want to get this surgery, but if you don't there's a 60 (or 70, or 80) percent chance that you'll die." The best I can say is "If you don't take this plea, the D.A. probably will never offer anything better, and the case most likely won't get dismissed on speedy trial grounds or after hearings, and you'll almost definitely lose after trial, and then the judge could give you 2-4 years in prison." It's easy to see why, with all of these words that sound so indefinite, a client might say "Let's go for it."

And, when a doctor says "If you don't get this surgery, you're likely to die," that death cannot possibly be construed as the doctor's fault. If you don't take the doctor's advice, you die, but not because the doctor did anything wrong (besides fail to convince you.) But when my client hears my pitch, he hears "If you don't take this plea, I'mprobably not a good enough negotiator to get the D.A. to offer you something better. And I'm such a bad lawyer, I'llmost likely lose the hearings, even though a 'real lawyer' would probably win. And, I'm so bad I'llalmost definitely mess up your trial. And after I just fail to make any pitch whatsoever, the judge could punish you for having the bad job that I did giving you 2-4 years."

Of course the client never hears "If you don't take this plea, the crime you committed is so serious, that you'll probably never get a better offer from the D.A. And the evidence against you - the evidence you handed over to the police is so strong that you will almost definitely lose at trial. And the severity of the crime you committed, along with your mess of a criminal record means that the judge could give you 2-4 years." Nah, that would require taking some responsibility.

I wonder how many doctors stay up at night worrying about that patient that didn't schedule the follow up that was suggested. I guess one difference is that, for all the doctor knows, the patient could have gone to another doctor or walked into another hospital for treatment. I know this client is stuck with me until I go to the judge and request otherwise.

It's easy to feel like I just want to give up. Fine, jerk, we'll go to trial, you'll lose, you'll go to prison, and I'll go out and eat a big delicious dinner on the salary that I make whether I win or lose, and then go home to my big comfy bed. No big loss for me. I don't need to twist your arm.

But that's not the right thing to do either. I feel like there is no right thing. Ugh, I am so frustrated. At least it's Friday.

"For most people, Friday's just the day before the weekend. But after this Friday, the neighborhood'll never be the same."

Aw hell, I say roll with it. "A trial? You mean like with a judge and everything? I don't think I could do one of those! I'm not that smart! Besides, the prosecutor's father runs a big law firm that will give me a job next year if I don't piss them off. I suppose technically it's your decision. Listen, I've got to go shoot some smack, so why don't you think it over for a few minutes?"

Who'll believe him if he complains?

Of course, I'm not a lawyer, so I may be missing some of the ethical fine points...

shoot, i know i ain't know real lawyer (just a fellow pd) but i hear what your saying. mark doesn't really seem to know what a trial is/entails, esp. since it sounds like your guy will get more years for going through a trial (which he will) than for pleading guilty.

I think your fellow PD missed Mark's sarcasm. Anyway, you know that the decsion is his alone to make and that releases you.

I always have clients sign a document acknowledging the advice I gave them and the reasons I gave the advice and the fact that they were going to do whatever they were going to do against their legal counsel's advice. If they refused to acknowledge the document I used to ask that the judge let me put on the record in the client's presence that he was going to trial or not going to trial against my advice. (I leave our the why's and how's. This only happened once but it had the same effect as the letter usually did.)

Seeing the responsibility placed on them in black and white usually had the effect of getting the plea. With that said, I just attended the NACDL Conference in NY and heard a number of very good speakers talk about winning unwinable trials with unreasonable clients. If you want more information you can reach me at www.Colleluorilaw.com thru the contact page and we can discuss your case further. The seminar was a real eye-opener to some of the things we can do on cases that seem unwinnable. Maybe there is a solution to your situation in there. Further I find attending these out of town CLE's really renews my energy and often helps me deal with the frustrations that crop up with being a lawyer who cares about his clients and our profession.

Er, yeah, I was kidding. I wrote that in response to The Blonde One's comment about just giving up. I certainly didn't mean to suggest that she's actually incompetent or selfish, merely that if the client thinks so anyway, she might as well use it to get what she knows is good for him...and I was kidding about that. (I've been watching too many epsodes of House, I guess.)

Apparently, the the humorous part was, well, not. All apologies to Ms. Justice if I gave offense.

I'm sure I have a poor grasp of what a trial is really like, but I'd like to think I'd be smart enough to believe my lawyer's analysis.

I don't know, it's not an untriable case, I just want my client to do one particular thing before we go to trial. Errr... I'll just have to keep trying and see where I get. Luckily, I have the power of persuasion on my side.

And, fortunately or unfortunately, this client is illiterate. So, I don't know that signing a relase will do any good. On the other hand, his illiteracy might work for me at a trial. If it comes to that. We'll see.

You know - there's the whole thing in the Rules of Professional Conduct about client unable to assist in his defense.... maybe you could get a guardian appointed. If he's being blockheaded and going in the direction of sure doom, then maybe there's something not right in the head with him.

Some of my clients have been going beyond the "make 'em prove it" bit to "I have an appeal after that" ... thinking of the one guy they know whose conviction was reversed on appeal and conveniently blaking out about everyone else's affirmed convictions.